Intellectual Property Insights from Fishman Stewart
Mini Article – Volume 23, Issue 13
Share on Social
A Banana Taped to a Wall – Copyright but no Infringement
How many ways are there to tape a banana to a wall? Yes, this is a serious legal question. In fact, this was the question presented in a recent copyright infringement lawsuit in Florida.
Italian artist Mauizio Cattelan is known for his controversial artistic creations, including a piece called Comedian which is a banana duct-taped to a wall. Since its gallery debut in 2019, Comedian has made headlines a couple of times, first when it was sold for $120,000, and then when the banana was eaten by another artist in 2019 and then again when the banana was eaten by a student in 2023. Apparently, art appreciation is hungry work.
Recently, Comedian made headlines as the basis for a copyright infringement lawsuit. Conceptual artist Joe Morford filed a lawsuit against Cattelan claiming that Comedian was a copy of Morford’s earlier made work called Banana and Orange, which featured (as one could guess) a banana and an orange duct-taped to a wall. The judge concluded that no copyright infringement occurred, because despite the similarities between the works—mainly that both works involved bananas taped to walls—there were enough differences between the two pieces of art to find that Cattelan’s Comedian was not a copy of Morford’s Banana and Orange.
According to the judge, the only shared feature between the two pieces was the concept of a banana taped to a wall with the stalk on the left-hand side. Copyright protection applies to expressions of an idea or concept, but not to the concept or idea itself. This limitation also applies where there are only a handful of ways to express an idea. In this case, the judge concluded, there were only two ways to tape a banana to a wall—stalk-left and stalk-right—and thus the concept of taping a banana to a wall stalk-left was not protected under copyright law. So, the judge dismissed the case. We will have to wait and see if there will be an a-peel!
Kristyn Webb is the Group Leader of Fishman Stewart’s Copyright Practice Group, and is currently earning a Master’s Degree in Copyright Law at King’s College London.
Published July 14, 2023
Related Content from Fishman Stewart
September 19th is International Talk Like a Pirate Day. In terms of intellectual property, “pirating” refers to the unauthorized copying, distribution, or use of someone else's creative work without their permission, and often for personal or financial gain.
National Red Wine Day is observed each year on August 28th. This year, to celebrate, we are sharing a fun story about wine, trademarks, and legal battle over the rights to use a family name on wine labels.
Have you ever wondered what was the very first work to receive a copyright registration in the United States?
The words “generative artificial intelligence” or “generative AI” have been crowding headlines for months with stories about the potential benefits and perils to humans. This article breaks down the top questions and answers we encounter regarding AI and intellectual property.
How many ways are there to tape a banana to a wall? Yes, this is a serious legal question. In fact, this was the question presented in a recent copyright infringement lawsuit in Florida.
Under US copyright law, to receive protection, a work must be “fixed” which means that a work must be expressed or embodied in a material medium that lasts for more than a transitory period.
The US Copyright Office recently made headlines for partially revoking a copyright registration it previously issued for an AI-generated graphic novel. Artist Kristina Kashtanova used the Midjourney platform to create images that she included in her graphic novel called Zarya of the Dawn.
Ed Sheeran recently successfully defended against a copyright infringement lawsuit over his 2014 hit “Thinking Out Loud.” Songwriter Ed Townsend’s heirs brought the suit alleging Sheeran had infringed Townsend’s copyrights in the 1973 Motown classic, “Let’s Get It On” which Townsend co-authored with Marvin Gaye.
American publishing houses consistently snapped up the works of the famous British author, re-published them in cheap editions, which sold all over the country, and they pocketed the proceeds without any remuneration to Charles Dickens.
For many of us, the term “Easter egg” conjures up memories of dying hard-boiled eggs in bright colors or hunting for treasures and candies stuffed inside plastic orbs hidden around the neighborhood.
IDENTIFYING, SECURING AND ADVANCING CREATIVITY®
